FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 17, 2008, the undersigned ordered respondent to serve a response to the petition. On January 30, 2009, respondent filed a motion to dismiss on the grounds that it is successive under 28 U.S.C. § 2244(b) and because it was filed beyond the one-year statute of limitations contained in 28 U.S.C. § 2244(d). After receiving an extension of time, petitioner filed a timely opposition to the motion on May 14, 2009. Respondent has filed a reply.
Petitioner was convicted of attempted murder, assault with a firearm, and discharging a firearm into an occupied vehicle. On July 11, 1999, petitioner was sentenced to an indeterminate state prison term of life with the possibility of parole, plus twenty years. (Respt.'s Lodged Document ("Lod. Doc.") 1.)
On March 2, 2001, the California Court of Appeal, Third Appellate District, affirmed the judgment, with the exception of ordering the abstract of judgment be amended to award one additional day custody credit. (Lod. Doc. 2.) The California Supreme Court denied review on May 16, 2001. (Lod. Docs. 3-4.)
Petitioner subsequently filed ten pro se state post-conviction collateral challenges to the pertinent judgment or claim, all petitions for writs of habeas corpus. (Lod. Docs. 5-26.)
On May 27, 2003, petitioner filed a federal habeas corpus petition in this court which challenged the same conviction. SeeJackson v. Scribner, 2:03-cv-01275 JKS. (Lod. Docs. 25-26.)
Petitioner filed the instant action on November 26, 2008.
This court's records confirm that petitioner previously filed an application for a writ of habeas corpus attacking the conviction and sentence challenged in this case. Case No. 2:03-cv-1275 JKS.*fn1 The previous application was filed on May 27, 2003, and was denied on the merits on May 25, 2007.
Before petitioner can proceed with the instant application he must move in the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Petitioner concedes he has not obtained an order authorizing this court to consider his application. (Opp'n at 4.) Petitioner contends he has contemporaneously made his request to the Circuit. (Id.) However, petitioner must obtain authorization before filing in the district court. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147 (2007). Therefore, petitioner's application must be dismissed without prejudice to its refiling upon obtaining authorization from the United States Court of Appeals for the Ninth Circuit.
In light of the above, the court need not reach the statute of limitations issue.
Accordingly, IT IS HEREBY RECOMMENDED that respondent's January 30, 2009 motion to dismiss this petition as successive be granted and this action be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the ...